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Canadian Tax Journal, Vol. 56, No. 3, 2008

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Canadian Tax Journal, Vol. 56, No. 3, 2008 canadian tax journal / revue fiscale canadienne (2008) vol. 56, no 3, 661 - 707 The Dividing Line Between the Jurisdictions of the Tax Court of Canada and Other Superior Courts David Jacyk* P r é c i s Le droit fiscal est sans aucun doute l’une des branches du droit les plus exigeantes et les plus complexes au Canada. On pourrait penser qu’en matière de droit fiscal, la question de la juridiction des tribunaux se pose très simplement en ces termes : quel tribunal peut statuer sur les affaires qui concernent l’administration de la législation fiscale? Pourtant, cette question à elle seule a fait l’objet d’un grand nombre de litiges depuis des décennies, devant différents tribunaux de première instance et d’appel partout au Canada, ce qui montre bien la complexité de la question de la compétence des tribunaux dans un état fédéral, et ce, même dans un domaine de droit comme la fiscalité qui est pourtant bien circonscrit. L’abondance de jurisprudence sur la question de la juridiction est particulièrement importante depuis quelques années, et elle comporte plusieurs décisions des cours d’appel qui ont contribué à éclaircir davantage cette question. Ce nouvel éclairage a donné lieu à des développements très appréciés. En reconstituant l’évolution du droit dans ce domaine, le présent article brosse un portrait détaillé et complet du droit et propose une analyse qui s’appuie sur les étapes suivantes : n l’examen de la structure des tribunaux fédéraux et en fiscalité; n la reconstitution de l’évolution de la jurisprudence aussi bien avant qu’après la réorganisation au fédéral du réseau des cours d’appel en fiscalité de 1991; n la prise en compte des décisions des tribunaux provinciaux qui se sont penchés sur cette question de façon indépendante du réseau des tribunaux fédéraux; n la prise en compte de l’ensemble des décisions en matière de rectification, un domaine qui a donné lieu à mon avis à des anomalies, mais des résultats tout de même gérables et prévisibles; * Of the Department of Justice, Ottawa. The views expressed in this article are mine alone and are not to be attributed in any way to the Department of Justice, the Canada Revenue Agency, or the government of Canada generally. The article provides a scholarly overview of the law and is not intended to be legal advice; readers should consult the relevant case law and legislation, or obtain an independent professional opinion, in considering how the law may apply in a particular case. I thank the many individuals who reviewed drafts of the article, and particularly Lisa Macdonell for her insightful comments on the subject matter. 661 662 n canadian tax journal / revue fiscale canadienne (2008) vol. 56, no 3 n la prise en compte des développements dans les décisions récentes en matière d’abus de procédure et de révision judiciaire, qui ont, il me semble, bel et bien apporté plus de précisions sur les paramètres détaillés des compétences de la Cour canadienne de l’impôt et des autres cours supérieures du Canada; n la présentation d’un résumé des principes extraits de la jurisprudence concernant la démarcation des compétences entre la Cour canadienne de l’impôt et les autres cours supérieures au Canada. A b s t r A c t Tax law is arguably one of the most challenging and complicated areas of the law in Canada. One might expect that one of the simplest and most straightforward questions in the area of tax law would be that of jurisdiction: Which court can adjudicate issues relating to the administration of tax legislation? Surprisingly, this very question has been the subject matter of much litigation for decades, in trial and appellate courts across Canada, illustrating the complexity of the issue of court jurisdiction in the context of a federal state, even in a well-defined area of the law such as taxation. The volume of jurisprudence on the issue of jurisdiction has been high in the last few years, and includes several decisions from appellate courts that have brought greater clarity to this issue. The clarity brought to bear is a welcome development. This article provides a comprehensive review and analysis of the law on jurisdiction by n reviewing the structure of the Tax Court and the Federal Court; n tracing the development of the case law prior to and following the reorganization of the federal tax appeal system in 1991; n considering the decisions of provincial courts that have tackled the issue independently of the federal court system; n considering the body of rectification cases, an area that, I argue, has created anomalous but nevertheless manageable and predictable results; n considering the developments in recent abuse-of-process and judicial review cases, which, I suggest, have definitively and emphatically clarified the fine parameters of the jurisdictions of the Tax Court and of the other Canadian superior courts; and n providing a summary of principles extracted from the jurisprudence regarding the demarcation of jurisdiction between the Tax Court and the other Canadian superior courts. Keywords: Jurisdiction n court cases n tax court of canada n appeals n federal court n courts n provincial n rectification c o n t e n t s Introduction 663 Organization of the Tax Court and the Federal Court 665 Historical Organization 665 Scope of a Tax Appeal 667 Federal Court Decisions Before the 1991 Reorganization 668 The Federal Court Sets the Parameters 668 Impact of Subsection 152(8) of the Income Tax Act 671 Distinguishing the Merits of an Assessment from Post-Assessment Liability 673 the jurisdictions of the tax court of canada and other superior courts n 663 Post-1991 Decisions—Defining the Scope of Tax Appeals 674 Refining the Subject Matter of Tax Appeals 675 Collection Cases—Revisiting Optical Recording? 677 Jurisdiction of the Tax Court Versus Provincial Superior Courts 680 The Tax Court Affirms Its Jurisdiction over Certain Matters Involving Provincial Law 680 The Provincial Superior Courts Weigh In 681 Provincial Superior Courts Decline Jurisdiction 685 Rectification Cases—Equity Finds a Backdoor in Tax Cases? 686 Abuse-of-Process Cases 691 The Tax Court on Abuse of Process 692 The Federal Court of Appeal Clarifies the Line 694 Recent Judicial Review Decisions 697 Recent Class Action Cases 700 The Addison & Leyen Decision 702 Conclusion 704 introduction While tax law is arguably one of the most challenging and complicated areas of the law in Canada, one might expect the question of the jurisdiction of the various courts over tax matters to be quite straightforward. Stated simply, which court has the authority to adjudicate the various issues relating to the administration of tax legislation? Surprisingly, this very question has been the subject matter of litigation for decades, in both trial and appellate courts across Canada. The volume and range of cases in which it has arisen illustrates the complexity of the issue of jurisdiction in a federal context, even in such a well-defined area of the law as taxation. In fact, it is not as easy as one might think to determine how closely an issue must relate to tax assessment in order to fall within the jurisdiction of the Tax Court of Canada. The important determination of which court to go to, which form of proceeding (if any) to initiate, and what kind of relief to seek must be made in con- sideration of all the relevant case law in its proper context, and in the context of the specific situation. Over the last few years, there has been a spate of decisions from appellate courts—including judicial review cases in the Federal Court and abuse-of- process cases—that have addressed the question of jurisdiction, bringing further clarity to the proper boundaries of each court’s jurisdiction. The various types of tax-related matters that will be discussed in this article can generally be classified under the following broad categories: 1. matters that involve the application of one or more specific charging provi- sions that determine a tax liability within a particular tax year, leading to a fixing of liability by an assessment; 2. matters relating to the calculation or recovery of a tax liability for a tax year after it is originally fixed by an assessment (“collection” matters); 3. procedural matters that are usually addressed by the provisions of the taxing legislation and that relate to the minister’s authority to raise the assessment, 664 n canadian tax journal / revue fiscale canadienne (2008) vol. 56, no 3 such as the legal effect of a waiver permitting assessment after the expiry of a limitation period, or the validity of a certification under the taxing legislation; 4. matters relating to the process leading to the assessment, such as the conduct of an official within the assessment process or compliance with a test-case agreement; and 5. other legal or factual determinations normally resolved by provincial law that define a taxable event or transaction and that dictate a tax outcome. In order to ascertain the lines demarcating jurisdiction in relation to these dif- ferent types of tax-related matters, one must first understand the history of the Tax Court and its relationship to the Federal Court and other superior courts. Accord- ingly, this article begins with a brief review of the historical structure of the federal tax appeal system and the case law prior to the reorganization of that system in 1991, which led to the creation of a Tax Court with exclusive jurisdiction over tax appeals. The cases from this era are still touchstone decisions in cases involving jurisdiction, but as I will explain, they cannot be read in isolation from the refine- ments and developments in later cases.
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